High Court of Meghalaya
Smti. Malati Prasad vs . Smti. Batasi Rajbhar on 27 February, 2024
Author: H. S. Thangkhiew
Bench: H. S. Thangkhiew
Serial No. 01
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
CRP No. 38 of 2019 Date of Decision: 27.02.2024
Smti. Malati Prasad Vs. Smti. Batasi Rajbhar
Coram:
Hon'ble Mr. Justice H. S. Thangkhiew, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. S.A. Sheikh, Adv.
Mr. L.N. Arengh, Adv.
For the Respondent(s) : Mr. S. Sen, Adv.
Mr. A. Momin, Adv.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT AND ORDER
1. The respondent as plaintiff had filed a Title Suit being T.S. No. 5 of
2009, before the Court of Additional District Magistrate (J), West Garo
Hills, Tura, seeking a declaration that she was the legally married wife of
one (L) Gyani Ram and also for declaration that the petitioner (defendant)
is not entitled to the death cum retirement benefits of (L) Gyani Ram. After
the separation of the judiciary from the executive had taken place in South
West Garo Hills, the case was then transferred to Ampati before the regular
court. The petitioner counsel then on 28.02.2018, filed the written
statement, to which the respondent (plaintiff) raised objections and on this
issue the Trial Court vide the impugned order dated 27.03.2018, closed the
opportunity to file written statement. An application thereafter, was also
filed for recalling the order dated 27.03.2018, but the same also stood
rejected by an order dated 06.09.2019. Being aggrieved thereby, this
Revision Application has been preferred by the petitioner by invoking
Article 227 of the Constitution of India.
2. As the Title Suit in question was of the year 2009, and the issue of
filing of written statement being as recent as in 2018, this Court for a
proper adjudication of the matter had requisitioned the records from the
Trial Court. On receipt thereof, the same have been examined thoroughly
and the submissions of the learned counsels also taken into consideration.
3. Mr. S.A. Sheikh, learned counsel for the petitioner has submitted that
the case has been long pending, in view of the fact that the same did not
proceed effectively after its institution, as it was pending before the
Executive and that it was only after the separation and endorsement of the
case to the District Court at Ampati, that the same proceeded. It is
submitted that due to the situation, the petitioner entered appearance only
on 07.11.2017, through her counsel who received copies of the plaint from
the Court on the same day itself, and the matter was then fixed on
28.11.2017, for appearance of the other defendants. On the said date, he
submits the other defendants entered appearance and the case was posted
for 06.02.2018, for filing of written statements, whereafter it was re-fixed
to 26.02.2018, but on that date, as the Presiding Officer was unavailable,
the case was put up again on 28.02.2018, and on this date, the petitioner
filed her written statement. The other defendants, he submits filed their
written statement on 05.03.2018, to which the plaintiff raised objections.
4. It is submitted by the learned counsel for the petitioner that though
the case was instituted as far back as on 2009, it was only after 11.05.2017,
when proper notice and copies of the plaint were received by the petitioner
and time was allowed by the Court for filing of the written statement. He
further submits that it is not reflected anywhere in the order sheet that, the
respondent/plaintiff had objected in writing to the filing of the written
statement by the petitioner/defendant, but the learned Trial Court by the
first impugned order dated 27.03.2018, had closed the written statement of
the petitioner on the ground that, there was no prayer in writing for
condonation/extension of time to file the written statement. It has been
contended that, time had been allowed by the Court for filing of written
statement, and that the stipulation of the outer limit of 90(ninety) days for
filing of written statement is only directory and not mandatory. In support
of his submissions, the learned counsel has placed reliance on the following
judgments:
(i) Bharat Kalra vs. Raj Kishan Chabra reported in
(2022) SCC OnLine SC 613
(ii) Judgment dated 8th October, 2021, Shoraj Singh vs.
Charan Singh passed in Civil Appeal No. 6304 of
2021.
(iii) M/s Meghalaya Infratech Private Limited & Ors. vs.
Smti. Margareth Khyriem passed in CRP No. 2 of
2017.
5. Mr. S. Sen, learned counsel appearing for the respondent has
countered the submission of the petitioner's counsel that, the defendant had
entered appearance only on 07.11.2017, and submits that in fact, the
petitioner/defendant had appeared in the suit as far back as on 31.07.2009,
and has placed the said order before this Court. He submits that, as the
petitioner/defendant had entered appearance in 2009, the filing of the
written statement only on 28.02.2018, cannot be overlooked, and that on
this ground alone, the Revision Application is liable to be dismissed. He
further submits that, though Order 8 Rule 1 of the CPC, as has been
interpreted is only directory and not mandatory, however, the requirement
of explaining the delay and the circumstances thereof, are absent, and as
such, the impugned orders suffering from no illegality, no interference is
called for by this Court, in the exercise of powers under Article 227 of the
Constitution of India. Learned counsel has placed reliance on the case of
Atcom Technologies Limited vs. Y.A. Chunawala and Company & Ors.
reported in (2018) 6 SCC 639.
6. Having heard the learned counsel for the parties and considering the
facts of the case, this Court is of the view that the sequence of events and
the orders passed in the case are of extreme relevance to be examined
closely, in order to arrive at a finding as to the legality of the impugned
orders. At first, it is to be noted that the suit was instituted in 2009, and as
per the order dated 31.07.2009, it was recorded as follows:
31.07.2009
Plaintiff present and represented.
Defendant No. 2 and 4 represented by their lawyer. Case adjourned
due to other ad. work.
Fix 18.08.2009.
As such, from the records, it is revealed that the petitioner who was
arrayed as Defendant no. 4, had appeared and was represented by her
lawyer on that date. It is to be noted also that, at that relevant point of time,
the judiciary and executive was still not separated, and as such, there were
no effective orders on the dates thereafter, but on 04.07.2011, the following
order was passed.
04.07.2011
CR put up today.
Plaintiff is represented. Defendant is absent.
Hence, case is adjourned.
Heard the Ld. Counsel for the Plaintiff. Last chance is given to
Respondent No. 4 to take steps failing which case will proceed ex-parte.
Issue notice to Respondent No. 4 to her present address in village
Matiakhurd, P.O Madhopur, Bujurg, District Kushinagar, UP by speed
post/registered A/D. Fix 12.09.2011 for steps.
Refix on 21.11.2011.
After the above noted order, a perusal of the order sheet shows that
the same did not proceed and though separation was effected on 18.07.2013,
the Title Suit as it had been filed in Tura, West Garo Hills and though by
order dated 29.03.2016, the Court of Assistant to Deputy Commissioner,
had issued notice to the parties, however, on the question of jurisdiction, the
counsel for the plaintiff had prayed the matter be transferred to South West
Garo Hills District.
7. On the said prayer, the Court of the Assistant to Deputy
Commissioner, as the territorial jurisdiction was with the Courts at South
West Garo Hills, allowed the same by order dated 20.06.2016, and it
appears that the records were then received on 16.01.2017. By order dated
11.05.2017, the Assistant to Deputy Commissioner, South West Garo Hills,
Ampati, then passed the following order:
11.05.2017
CR put up today.
Seen the office order of the Ld. Additional Deputy Commissioner (J),
South West Garo Hills, Ampati, endorsing the case to my file for disposal.
Vide notification No. HCM.II/184/2015/592 dt. 21.02.2017 and No.
I.J. (A) 77/2000/Pt. 227 Dated 22nd February, 2017. I have been appointed
and invested with powers as Judicial Magistrate First Class and Assistant
to Deputy Commissioner, South West Garo Hills, Ampati.
Issue notice to the parties.
Fix 30.06.2017 for appearance and steps.
After the above noted order was passed, by subsequent dates i.e. on
30.06.2017, 25.07.2017, 22.08.2017, 27.09.2017, as seen from the order
sheet, directions were issued for re-issuance of notice to the defendants. On
30.10.2017, adjournment was sought from the plaintiff side and it appears
that it was on 07.11.2017, that the plaintiff filed copies of the plaint and
other documents which was received by the counsel of the
petitioner/defendant no. 4. Order dated 07.11.2017, is reproduced herein
below.
07.11.2017
CR put up.
Ld. Counsel S.T.Ch.Marak, present in Court for the plaintiff and filed
the copies of the plaint and relevant documents.
Ld. counsel S. Chakravarty present and filed vakalatnama and is
representing defendant 4.
BA to notify the GP.
Re-issue notice to defendant 1 to 3.
Copies furnished to the defendant no. 4.
Fix 28.11.2017 for appearance of defendant 1 to 3 and steps.
8. Thereafter, by order dated 28.11.2017, the Trial Court fixed
06.02.2018, for filing of written statements and on 06.02.2018, on the
prayer of the defendants, the Court fixed 22.02.2018, for filing of written
statements. On 22.02.2018, as the Presiding Officer of the Court was on
leave, the matter was taken up on 28.02.2018, wherein the written
statement on behalf of the petitioner was filed. The respondent/plaintiff
then on 05.03.2018, objected to the filing of the written statements as
recorded in the order so dated, but from the records no written objection is
present. The Trial Court, then by order dated 27.03.2018, on the finding
that no prayer had been made in writing for condonation of delay, closed
the filing of written statement.
9. The petitioner then filed an application dated 16.08.2019, praying for
recall of the order dated 27.03.2018, and for condonation to condone the
delay for filing of written statement, on the ground that she was unaware
about the passing of order dated 27.03.2018, and further that she was an
illiterate woman, and a permanent resident of Uttar Pradesh, without any
shelter in the district. The Trial Court then by order dated 06.09.2019,
rejected the said application.
10. From the entire sequence of events, that unfolded as narrated above,
though undoubtedly the filing of the written statement was delayed over an
unduly long period of time, this Court is to examine as to whether the same
was occasioned due to the gross negligence of the petitioner/defendant no.
4, or by compelling and exceptional circumstances which have to be taken
into consideration. In this instant case, it is noted that though the
petitioner/defendant entered appearance on 31.07.2009, thereafter it
appears notices were again re-issued on subsequent dates, as is apparent
from the order sheet itself. Coupled with this, is the fact that the Trial Court
at the relevant point of time, was erratic in its sittings, as the judiciary was
yet to be separated from the executive. The progress of the case which was
not definite and predictable, continued until the separation was effected,
and the jurisdictional issue raised, finally settled by order dated 20.06.2016,
the matter then was taken up on transfer only on 11.05.2017, by the present
Trial Court at South West Garo Hills. Copies of the plaint and documents
were furnished to the petitioner on 07.11.2017, and time thereafter, was
allowed and dates fixed, for filing of the written statement. These factors
therefore, necessarily deserve due consideration as to whether there were
compelling circumstances, which caused the delay in filing the written
statement.
11. Order 8 Rule 1 CPC, requires the defendant to file the written
statement within 30(thirty) days from the date of service of summons, and
by the proviso, the time limit is upto 90(ninety) days, on recording reasons
for the failure to file written statement within the said period of 30(thirty)
days. However, Order 8 Rule 9 and 10 CPC are provisions that allow the
Court to permit subsequent pleadings or to make such other orders. The
time limit as prescribed and incorporated in the CPC was with the objective
to curb parties or defendants from adopting dilatory tactics, which would
delay disposal of cases, and these provisions therefore, were incorporated
to expedite proceedings. The Courts however, are not powerless to consider
the cases on their own merits, keeping in mind the fact that these provisions
are procedural and not substantive. Moreover, as has been held in the case
of Salem Advocate Bar Association, T.N. vs. Union of India (2005) 6
SCC 344, on the question as to whether the Court has any power or
jurisdiction to extend the period beyond 90(ninety) days, it was held that
the upper limit i.e. 90(ninety) days to file the written statement was
directory and the time cannot be extended in a routine manner, but that the
same could be done only in exceptionally hard cases. This Court in the case
of M/s Meghalaya Infratech Private Limited & Ors. vs. Smti. Margareth
Khyriem passed in CRP No. 2 of 2017, also held that "when the narration
of facts does not point out towards delaying tactics on the part of the
defendant, it would be a travesty of justice to deny opportunity to defend
the title suit on merits".
12. In the instant case, what is clearly revealed is that the petitioner who
is also seeking to maintain her rights as the widow of the deceased
employee namely one (L) Gyani Ram, there is no question of adoption of
any dilatory tactics to thwart the progress of the suit. Moreover, it has been
stated on affidavit and also evidenced from the order sheet itself that, the
petitioner is a permanent resident of Uttar Pradesh apart from being
illiterate. From the facts as placed earlier, the vesting of judicial functions
upon the executive was also responsible for the considerable delay caused.
As such, all these factors taken together and also that there is no bar for the
Court to accept and allow a written statement to be filed, after the
stipulated time, this Court is of the considered view that in view of the
compelling circumstances, and for the ends of justice, the written statement
filed by the petitioner should be accepted by the Trial Court.
13. Consequently, the impugned orders shall stand set aside and
quashed, and the Trial Court is to proceed to dispose of the matter most
expeditiously preferably within a period of 6(six) months from the date of
this order. The parties are put to notice to appear before the Trial Court on
14th March, 2024.
14. Lower Court records to be transmitted back immediately.
15. In view of the observations and findings above, this Civil Revision
stands allowed and disposed of.
Judge
Meghalaya
27.02.2024
"D.Thabah-PS"
